It’s time Pennsylvania pay for its criminal justice mistakes, lawmakers say

The exonerated, like Drew Whitley of Swissvale, receive no financial support after being wrongly convicted in Pennsylvania. Could that finally change?

Drew Whitley spent nearly two decades in prison for a murder he didn't commit. Thirteen years after his exoneration and release, he struggles to make ends meet.

Drew Whitley spent nearly two decades in prison for a murder he didn't commit. Thirteen years after his exoneration and release, he struggles to make ends meet.

COLIN DEPPEN / THE INCLINE
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Drew Whitley is in the parking lot of a Swissvale Arby’s with nothing to eat and no money.

He squints up at the food porn posterized in the windows. He checks his pockets for loose change but comes up empty.

Then he starts a well-worn recitation of all the things he would buy, sandwiches included, with money from Pennsylvania — compensation for the 18 years he spent in prison for a murder he didn’t commit.

“I could get myself a car and a nice place to stay instead of that rathole I’m living in now,” Whitley says. “Right now, I ain’t got two quarters to rub together. It’s tight, very tight.”

It’s a sunny day in early spring. The parking lot bustles, children ride past on newly polished chrome bikes, and Whitley sounds uncharacteristically upbeat as he imagines a world in which he’s no longer reliant on food banks or Social Security checks to get by. A world in which he’s financially compensated as one of the dozens who’ve been wrongly imprisoned and ultimately cleared of crimes by the commonwealth.

But Whitley doesn’t live in that world. He lives in Pennsylvania, one of 17 states that offer nothing to those individuals except a pat on the back and an open cell door.

There is no compensation fund here and, lawmakers say, surprisingly little clamor in favor of one.

“I’ve met with scores of criminal justice reform advocates — and I don’t recall this issue being raised even once,” Rep. Rob Kauffman, Republican chair of the House Judiciary Committee, told The Incline.

Rep. Tim Briggs, Kauffman’s Democratic counterpart, added by email, “Even in the Justice Reinvestment Initiative or the caucus to discuss criminal justice matters, I haven’t seen this issue coming up.”

Unsurprisingly then, related legislation has been slow to root. In fact, none has been introduced on this front since 2015-2016 in the House and 2017-2018 in the Senate, per Kauffman’s office.

It’s unclear why exactly that is. Guesses include the lack of an organized and monied lobbying push, the relative invisibility of prisoners and prison issues, and society’s innate desire to turn away from or absolve its collective sins.

But a bipartisan criminal justice reform movement is underway in Harrisburg and yielding impactful policy updates. It’s also giving new hope to advocates on this very issue — Lieutenant Gov. John Fetterman, who knows Whitley from Fetterman’s days as Braddock’s mayor, among them.

Whitley’s optimism is decidedly more cautious, though. He says he’s tired of waiting for the justice system to right its own wrongs. He feels forgotten and waylaid by circumstance. And seated outside of the Swissvale Arby’s, he was hungry and unsure of how to fix it.

Drew Whitley spent nearly two decades in prison for a murder he didn't commit. Thirteen years after his exoneration and release, he struggles to make ends meet. He hopes bipartisan support for criminal justice reform will lead to the creation of a compensation fund for others like him. Whitley is pictured here outside the Arby's in Swissvale, the borough where he now lives.

Drew Whitley outside the Arby's in Swissvale.

COLIN DEPPEN / THE INCLINE

The conviction

Whitley was charged with Noreen Malloy’s murder on February 10, 1989.

Malloy, 22, had been robbed and fatally shot by a masked man while leaving her job at a Duquesne McDonald’s, in the shadow of Kennywood Park, five months earlier.

The case against Whitley moved quickly.

His bench trial commenced in July 1989, lasting a total of two days. The proceedings centered on shaky eyewitness testimony, circumstantial evidence, ultimately discredited forensic testimony — a more detailed breakdown can be found here — and ended with Whitley being convicted of second-degree murder and sentenced to life.

He began serving his sentence immediately at SCI Pittsburgh, the notorious and now-shuttered state prison in Marshall-Shadeland.

“They threw me in there. Gave me life without parole,” Whitley said. “It’s terrible in there. Especially if you’re wrongly accused.”

Whitley did not acclimate well. He refused a cellmate and spent a year in solitary confinement. His marriage fell apart. He withdrew into himself.

Appeals on his behalf were filed and lost, as were requests for a re-examination of the forensic evidence against him. (In resisting such motions, Allegheny County authorities pointed to Whitley’s prior record for robbery and the fact that he was implicated in Malloy’s shooting death by two witnesses.)

Nearly 20 years passed before a judge approved new testing of the DNA evidence that was used to convict Whitley, including hair evidence left at the scene by the killer and recovered by police.

That testing excluded Whitley as the source, twice, and he was released from prison on May 1, 2006, roughly 18 years after first going in.

But that’s essentially where the state’s involvement ends.

The Pennsylvania State Capitol building in Harrisburg is pictured.

The Pennsylvania State Capitol building in Harrisburg is pictured.

FLICKR / GOVERNOR TOM WOLF

The money question

There are other Drew Whitleys out there in Pennsylvania. Lewis Jim Fogle, Nicholas Yarris, and Crystal Weimer, just to name a few.

In total, Pennsylvania has exonerated 70 people since the Pennsylvania Innocence Project first started keeping track in 1989. That’s to say nothing of the wrongly convicted who haven’t been so lucky. This includes those unable to locate exculpatory evidence, those with cases that don’t qualify for forensic audits or cases in which forensic evidence was lost or too degraded to be reviewed.

Because Pennsylvania lacks a compensation law, all exonerees are left to collect damages by filing federal lawsuits claiming their civil rights were violated or that they were victims of malicious prosecution.

Anthony Wright, a Philadelphia man who served nearly 25 years for a 1991 rape and murder that DNA evidence ultimately proved he didn’t commit, received a nearly $10 million settlement from the city in June, the largest wrongful-conviction payout in Philadelphia history.

But these cases are notoriously hard to win, as Whitley learned firsthand when he sued Allegheny County for $10 million in compensation a year after his release and lost.

Advocates say a state compensation law would remove this hurdle. The question then is: How much money is enough?

In 2017, then-state Sen. Stewart Greenleaf, a Republican, introduced legislation that would have given Pennsylvania’s wrongly convicted $50,000 for each year they spent behind bars. (This would mean nearly $1 million for Whitley, a truly life-changing sum.)

In 2015, legislation was introduced in the House that proposed compensation of a sum “equal to twice the amount of the gross wages the plaintiff earned in the year prior to his arrest or $25,000, whichever is greater, for each year of wrongful imprisonment.” Neither bill went anywhere.

The Innocence Project, a nonprofit legal organization committed to exonerating the wrongly convicted, says the recommended federal standard is up to $63,000 per year of incarceration. Of the more than 30 states with compensation laws on the books, compensation amounts vary widely. New Hampshire provides the wrongly imprisoned with no more than $20,000, the Innocence Project reports, while Texas law allows exonerees to receive up to $80,000 per year of confinement.

Those are details Pennsylvania lawmakers say they’re willing to hash out if and when this discussion proceeds here.

“I think that’s something we may want to look at or have some hearings on,” state Sen. Larry Farnese, a Philadelphia-area Democrat and member of the Senate Judiciary Committee, explained by phone. “Do we do a cap or do we follow the lead of states without a cap? There’s a lot of different ways we can go.”

For now, there is nothing pending and no hearings are scheduled.

But if the push for a compensation law has traditionally stalled for lack of an effective whip in Harrisburg, Whitley and his supporters think they may have finally found one.

Pennsylvania Lieutenant Governor John Fetterman at his inauguration on Jan. 15, 2019.

Pennsylvania Lieutenant Governor John Fetterman is pictured at his inauguration on Jan. 15, 2019.

FLICKR / GOVERNOR TOM WOLF

The insider

When Whitley and attorney Lawrence Fisher released their book about Whitley’s case in 2014, the launch party was held at the Downtown Braddock loft of then-Mayor John Fetterman.

“I’ve known Drew for years,” Fetterman said recently by phone. “And to me, he is the poster child for why it’s critical that we make compensation available for the falsely and wrongly imprisoned. His life is tragedy stacked upon tragedy.”

Fetterman is now in a unique position to do something about that, having been elected lieutenant governor of Pennsylvania in November and duly appointed president of the Senate and head of Pennsylvania’s board of pardons.

In the last month, Fetterman has appointed a former drug convict as secretary of the board of pardons and successfully pushed to eliminate an application fee charged to those seeking relief from the board.

He is second in command to Democratic Gov. Tom Wolf, who has pledged to use his second term to push for additional criminal justice reforms after significant successes — bipartisan ones at that — during his first four years in office.

Fisher, who represented Whitley in his civil lawsuit against Allegheny County and who wrote the book about Whitley’s case, said he doesn’t think it’s pushback that’s keeping Pennsylvania from pursuing a compensation law but rather “that there isn’t enough push.”

Fisher said this may owe to the fact that the number of exonerees in Pennsylvania fails to shock the public conscience.

But he believes Fetterman’s support could be pivotal, adding, “One would think he would have immeasurable sway in advancing this legislation if he wanted to.”

Drew Whitley and Gisele Fetterman are pictured.

Drew Whitley and Gisele Fetterman are pictured.

COURTESY OF JOHN FETTERMAN

And Fetterman said he does. While he can’t introduce bills in his current role, he can drive discussions both inside the Capitol and outside of it, as he’s proven with his statewide listening tour on the prospect of legalizing recreational marijuana here.

“I certainly can use the platform of being second-in-command in Pennsylvania to push for this,” Fetterman said of compensation for exonerees.

“We as a society must, at a minimum, compensate them and help them build some kind of life.”

Spokesman JJ Abbott said Gov. Tom Wolf feels similarly, and that while any legislative proposal would need to be carefully vetted, Wolf is “broadly supportive of creating some kind of compensation system for wrongful convictions.”

Fetterman said he’s optimistic that Republicans can get behind such a proposal, too — states with more conservative legislatures already have — and points to “an historic window that’s open now, from a bipartisan standpoint, on criminal justice reform.”

Marissa Bluestine, executive director of the Pennsylvania Innocence Project, said legislative opposition around this subject has traditionally followed law enforcement opposition.

And while Bluestine says the latter is fading, potential sticking points remain. Chief among them is how compensation claims would be judged and whether an exoneration alone would be enough to qualify. The law enforcement community has long argued that exonerations aren’t always proof of innocence but rather sometimes of flawed prosecutions. For that reason, some in the community have advocated for a higher standard of proof — or innocence — being applied to compensation claims. (The Pennsylvania Innocence Project believes the burden of proof for exonerations is more than adequate.)

There’s also a recidivism angle to be considered, with advocates and researchers arguing that financial stability in the lives of exonerees can keep them from going back to prison post-release.

“For someone like Drew, there’s a profound impact from being removed from society and kept from society for nearly two decades,” Fisher said of Whitley, who’s had brushes with the law, many of them drug related, since leaving prison in 2006.

“Those people come out of jail entirely unequipped to deal with changes in society and they didn’t even give Drew bus fare. They just opened the door and let him out with the shirt on his back.”

The Pennsylvania Department of Corrections said it continues to hone its re-entry efforts but that the immediacy of some releases after exoneration can make it hard to prepare those individuals for life on the outside and such a sudden shift.

“… sometimes in these cases, we see people immediately released from court — not giving us really any time to work with them,” Department of Corrections spokesperson Susan McNaughton explained.

“For wrongly convicted individuals, in most cases we may not have a significant amount of time to provide them with (support) services.”

Bluestine said she mentioned this in a recent meeting with the governor, explaining that probationers and parolees who actually committed the crimes they were imprisoned for are better off than exonerees in terms of the resources afforded them upon release.

“He was stunned at that,” Bluestine added. “Absolutely stunned.”

The free man

Today, Whitley lives in Swissvale and subsists on a monthly Social Security check, the amount lessened, he says, by the nearly 20 years he spent in prison and out of work. His rent takes up most of it.

After his release, Whitley said he was offered a job by Malloy’s parents. He said he declined but agrees it’s more assistance than he’s seen from the commonwealth. The irony of that is not lost on him. (Attempts to reach members of Malloy’s family were unsuccessful. Her murder remains unsolved.)

“I’ve never even gotten an apology, and I don’t want one,” Whitley said of authorities. “I mean, I would hear it. I’m not hateful. But the state didn’t do nothing to help me. Just opened the door. Just threw me on out.”

Whitley continues to believe that the high-profile nature of the case and its racial undertones — Malloy was white and her killer reportedly black — led to him being hastily accused and ultimately denied a fair trial. His civil suit against the county argued as much.

Whitley spends his days now inside his efficiency apartment, watching TV, reading, or listening to music. Occasionally, he’ll leave to visit his mother in nearby Braddock. Mostly he keeps to himself. He turns 64 this year.

“My nerves are all bad,” he said. “I still have PTSD from prison. I’m taking nerve medicine and everything. I’m happy when I’m by myself. I just want to be left alone.”

Whitley acknowledges that 13 years after being freed from prison, he’s living much like he did on the inside — isolated and withdrawn and with little to his name.

“It’s hard, but I’m surviving,” Whitley added. “If you can survive 20 years of being falsely accused — they could put me in a helicopter and drop me anywhere and I’m going to make it or die trying.”